Legal Sidebari
The Department of Homeland Security’s
Nationwide Expansion of Expedited Removal
Updated October 2, 2019
Update: Following the initial publication of this Legal Sidebar, several immigration advocacy groups
filed a lawsuit in the U.S. District Court for the District of Columbia, challenging the Department of
Homeland Security’s (DHS) nationwide expansion of expedited removal. The plaintiffs alleged, among
other things, that DHS violated the Administrative Procedure Act (APA) because the agency failed to
comply with notice-and-comment procedures before announcing the expedited removal expansion, and
the agency did not offer a “reasoned explanation” for its decision. The plaintiffs also argued that the
expedited removal expansion violated the Fifth Amendment’s Due Process Clause because it deprives
individuals who have lived in the United States for lengthier periods of time an opportunity to contest
their removal at a hearing. On September 27, 2019, the D.C. federal district court granted the plaintiffs’
motion for a preliminary injunction pending the outcome of the litigation. The court determined that it has
jurisdiction to review the plaintiffs’ challenge under § 242(e)(3) of the Immigration and Nationality Act
(INA), which authorizes the court to review whether a regulation or written policy to implement expedited
removal is unconstitutional or in violation of law; and that INA § 235(b)(1), which grants DHS the “sole
and unreviewable discretion” to designate categories of aliens subject to expedited removal, does not bar
judicial review of the manner in which DHS makes an expedited removal designation. In reviewing the
expedited removal expansion, the court concluded that DHS likely violated the APA by not complying with
notice-and-comment procedures before announcing the expansion, and failing to consider the “potential
negative impacts” of expanding expedited removal into the interior of the United States. The court did not
address the plaintiffs’ constitutional challenge to the expedited removal expansion. Given the court’s
decision, DHS may not implement its nationwide expansion of expedited removal pending the outcome of
the litigation.
The original version of this Sidebar from July 26, 2019 is published below.June 30, 2020
Non-U.S. nationals (aliens) apprehended by immigration authorities when attempting to unlawfully enter
the United States are generally subject to a streamlined, expedited removal process, in which there is no
hearing or further review of an administrative determination that the alien should be removed. Since the
enactment of the expedited removal statute in 1996, expedited removal has been used primarily with
respect to aliens who have either arrived at a designated port of entry or were apprehended near the border
shortly after surreptitiously entering the United States. The Immigration and Nationality Act (INA),
however, authorizes the Secretary of the Department of Homeland Security (DHS) to apply expedited
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removal more broadly to aliens in any part of the United States who have not been admitted or paroled by
immigration authorities, if those aliens have been physically present in the country for less than two years
and either did not obtain valid entry documents or procured their admission through fraud or
misrepresentation. Based on that authority, DHS recently announced that it will expand expedited
removal to the In 2019, DHS issued notice that it was expanding the use of expedited removal to the
full extent permitted under the statute. The proposed INA. The expansion raisesprompts significant questions
concerning the
relationship between the federal government’s broad power over the entry and removal of
aliens and the
due process rights of aliens located within the United States. Recently, a federal appellate court upheld the
expansion against a legal challenge seeking to stop its implementation.
The Expedited Removal Framework
Typically, when DHS seeks to remove an alien found in the interior of the United States, it institutes
removal proceedings under INA § 240, and these proceedings are conducted by an immigration judge (IJ)
within the Department of
Justice’s Executive Office for Immigration Review. During these “formal”
removal proceedings, the alien
has a number of procedural protections, including the right to counsel at
his own expense, the right to
apply for any available relief from removal (such as asylum), the right to
present testimony and evidence
on the alien’s own behalf, and the right to appeal an adverse decision to
the Board of Immigration
Appeals (BIA). Additionally, the alien may, as authorized by statute, seek
judicial review of a final order
of removal. Generally, DHS may (but is not required to) detain an alien
while formal removal proceedings
are pending, and may release the alien on bond or his or her own
recognizance (however, detention is
mandatory if the alien is removable on certain criminal or terroristrelatedterrorist-related grounds, except in limited circumstances).
circumstances).
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The INA sets forth a separate removal process for certain arriving aliens who have not been admitted into
the United States—a process that significantly differs from the formal removal proceedings governed by
INA § 240. Specifically, INA § 235(b)(1) provides that an alien arriving at the U.S. border or a port of
entry will be removed from the United States without a hearing or further review if he or she lacks valid
entry documents or has attempted to procure admission by fraud or misrepresentation. (Aliens found
inadmissible on most other grounds—e.g., because of certain criminal activity—are not subject to
expedited removal and will instead be placed in formal removal proceedings.) INA § 235(b)(1) also
authorizes—but does not require—DHS to apply this process to aliens inadmissible on the same grounds
who have not been admitted or paroled into the United States by immigration authorities, and who have
been physically present in the United States for less than two years. “Such designation shall be in the sole
and unreviewable discretion” of the DHS Secretary, and the designation “may be modified at any time.”
Expedited removal has far fewer procedural protections than formal removal proceedings. The alien has
no right to counsel, no right to a hearing, and no right to appeal an adverse ruling to the BIA. Judicial
review of an expedited removal order also is limited in scope. Further, the INA provides that an alien
“shall be detained” pending expedited removal proceedings. Although DHS has discretion to parole an
alien undergoing expedited removal, thereby allowing the alien to physically enter and remain in the
United States pending a determination as to whether he or she should be admitted, DHS regulations only
authorize parole at this stage for a medical emergency or law enforcement reasons.
Despite these restrictions, further administrative review occurs if an alien in expedited removal indicates
an intent to seek asylum or otherwise claims a fear of persecution or torture if removed. If, following an
interview, the alien demonstrates a credible fear of persecution or torture, he or she will be placed in
formal removal proceedings under INA § 240 in lieu of expedited removal, and may pursue an application
for asylum and related protections in those proceedings (if the alien fails to show a credible fear of
persecution or torture, he or she may still seek administrative review of the asylum officer’s determination
before an IJ). Administrative review also occurs if a person placed in expedited removal claims that he or
she is a U.S. citizen, a lawful permanent resident (LPR), or has been granted refugee or asylee status. In
these circumstances, DHS may not proceed with removal until the alien’s claim receives consideration.
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Expedited removal initially was implemented only with respect to arriving aliens seeking entry at a U.S.
port of entry. In 2002, the former Immigration and Naturalization Service (INS) exercised its
discretionary authority to expand expedited removal to aliens who entered the United States by sea
without being admitted or paroled, and who have been in the country less than two years. Then, in 2004,
DHS (the successor agency to INS) extended expedited removal to designated aliens apprehended within
100 miles of the U.S. border within 14 days of entering the country, who have not been admitted or
paroled.
DHS’s Expansion of Expedited Removal
In January 2017, President Trump issued an executive order directing DHS to apply expedited removal
within the broader limitations of the statute. On July 23, 2019, DHS issued a Federal Register Notice to
implement this directive.
DHS’s Expansion of Expedited Removal
The July 23, 2019, DHS The notice immediately expandsexpanded the scope of aliens subject to expedited removal
removal within the full extent permitted by INA § 235(b)(1). Specifically, DHS designated the following
two new
classes of aliens as subject to expedited removal:
1. Aliens who did not arrive by sea, who are encountered anywhere in the United States
more than 100 air miles from a U.S. international land border, and who have been
continuously present in the United States for less than two years; and
2. Aliens who did not arrive by sea, who are encountered within 100 air miles from a U.S.
international land border, and who have been continuously present in the United States
for at least 14 days but for less than two years.
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Taken together with prior expansions of expedited removal, the streamlined removal process wouldis now
potentially be applicable to any alienaliens physically present in the country for less than two years who either
did not obtainany part of the United States who (1) are
inadmissible because they lack valid entry documents or hadhave procured admission through fraud or misrepresentation.
In the Notice, DHS cites “the ongoing crisis at the southern border, the large number of aliens who
entered illegally and were apprehended and detained within the interior of the United States, and DHS’s
insufficient detention capacity both along the border and in the interior of the United States.” DHS argues
that an interior expansion of expedited removal “will help to alleviate some of the burden and capacity
issues currently faced by DHS and DOJ by allowing DHS to remove certain aliens encountered in the
interior more quickly, as opposed to placing those aliens in more time-consuming removal proceedings.”
The agency also argues that the expansion is warranted because some aliens who enter the United States
without inspection, including some smuggled into the country, “evade apprehensions due to
vulnerabilities in border operations resulting from U.S. Border Patrol’s lack of sufficient resources.” DHS
contends that the expansion “will reduce incentives” to enter the United States unlawfully and travel into
the interior of the country; ensure the prompt removal of aliens apprehended in the United States; reduce
costs; and improve national security and public safety.
DHS observes that any alien who falls within the newly designated classes subject to expedited removal,
but indicates an intention to apply for asylum or expresses a fear of persecution or torture, will be referred
to an asylum officer for a credible fear interview. As noted above, the expedited removal statute provides
that if an alien subject to expedited removal establishes a credible fear of persecution or torture, the alien
will be placed in formal removal proceedings where the alien’s claim for relief may be pursued. In
addition, aliens who claim to be U.S. citizens, LPRs, asylees, or refugees will continue to receive “the
same procedural safeguards that apply in all expedited removal proceedings.” DHS also recognizes that it
may exercise discretion not to place an alien in expedited removal proceedings (e.g., for medical reasons
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or if the alien has substantial connections to the United States). DHS states that it also may permit an
alien to voluntarily return to his country or place the alien in formal removal proceedings instead.
DHS indicates that the expansion of expedited removal will take effect immediately. The agency argues
their entry through fraud or
misrepresentation, (2) have not been admitted or paroled, and (3) have been in the country less than two
years.
Under DHS regulations, an alien screened for expedited removal has the burden of proving that he was
admitted or paroled into the United States, and that he has the required continuous physical presence in
the United States to avoid expedited removal. But, as noted, an alien placed in expedited removal may
potentially pursue asylum or request administrative review of a claim that he or she is a U.S. citizen, LPR,
asylee, or refugee. DHS has also maintained that it has discretion to place the alien in formal removal
proceedings, or to allow the alien to voluntarily return to his or her country in lieu of expedited removal.
DHS indicated that the expansion of expedited removal would take effect immediately. The agency
argued that the expansion does not have to go through the notice-and-comment procedures that generally
apply to
agency rulemaking “because public notice and comment and the delay attendant thereon would be
be impracticable, unnecessary, and contrary to the public interest.” Nevertheless, DHS will seeksought comments
to ensure that the agency can be “more effective in combating and deterring illegal entry, while at the
same time providing for appropriate procedural safeguards for the individuals designated.”
Accordingly, based on the new DHS rule, the agency generally may apply expedited removal to aliens in
any part of the United States who (1) are inadmissible on the grounds that they lack valid entry
documents or have procured their entry through fraud or misrepresentation, (2) have not been admitted or
paroled, and (3) have been in the country less than two years. Under DHS regulations, an alien screened
for expedited removal has the burden of proving that he was admitted or paroled into the United States,
and that he has the required continuous physical presence in the United States to avoid expedited removal.
Potential Legal Challenges and Constitutional Issues
The expansion of expedited removal will assuredly prompt legal challenge. These challenges may raise at
least two types of issues: (1) jurisdictional issues concerning the extent to which the expansion is subject
to judicial review; and (2) constitutional issues concerning whether expedited removals of aliens in the
interior would violate due process.
Jurisdictional Limitations
Generally, under INA § 242(a)(2)(A), there is no judicial review of DHS’s decision to invoke expedited
removal. The provision purports to bar claims that an alien was improperly placed in expedited removal
proceedings, challenges to the agency’s credible fear determination, and claims challenging the
procedures and policies used to expedite removal. Under INA § 242(e)(3), however, an alien subject to an
expedited order of removal may challenge the validity of the expedited removal system by filing a lawsuit
in the U.S. District Court for the District of Columbia. The district court’s review is limited to whether:
1. the expedited removal statute or its implementing regulations is constitutional; and
2. a regulation or written policy directive, guideline, or procedure issued by DHS to
implement expedited removal is consistent with the statute or other laws.
A lawsuit raising a systemic challenge to expedited removal must be brought within 60 days after
implementation of the challenged statutory provision, regulation, directive, guideline, or procedure (a
timeline that might be slightly extended if the deadline falls on a weekend or holiday). Thus, with regard
to DHS’s new rule expanding expedited removal, any lawsuit challenging that rule under INA § 242(e)(3)
would have to be brought in the D.C. federal district court by September 23, 2019.
Apart from challenging the expansion of expedited removal through a systemic challenge under INA §
242(e)(3), an alien who falls within the newly designated classes of aliens subject to expedited removal
potentially could raise an individual challenge to the expansion in a habeas corpus proceeding. Under INA
§ 242(e)(2), an alien subject to expedited removal may challenge the underlying expedited removal order
in a habeas corpus proceeding in federal district court. The court’s jurisdiction, however, is strictly limited
to determining whether the petitioner is an alien, whether the petitioner was ordered removed under the
expedited removal statute, and whether the petitioner is an LPR, refugee, or asylee. Given the limited
scope of review, most courts have held that INA § 242(e)(2) does not permit judicial review of whether
the expedited removal statute was lawfully applied to an alien. The U.S. Court of Appeals for the Ninth
Circuit, however, recently held that the limitations on habeas review under INA § 242(e)(2) violated the
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Suspension Clause as applied to an alien who was subject to expedited removal, and that the alien had the
right to contest the validity of his expedited removal order in habeas proceedings.
Judicial review also may be restricted by INA § 235(b)(1), which provides that decisions to designate
additional classes of aliens subject to expedited removal “shall be in the sole and unreviewable
discretion” of the DHS Secretary. Under INA § 242(a)(2)(B), no court has jurisdiction to review “any
other decision or action of the Attorney General or the Secretary of Homeland Security the authority for
which is specified under this subchapter to be in the discretion of the Attorney General or the Secretary of
Homeland Security” (other than the granting of asylum). But this jurisdictional bar might not foreclose
judicial review of a constitutional challenge to the expansion of expedited removal given “the wellestablished principle that when constitutional questions are in issue, the availability of judicial review is
presumed, and [courts] will not read a statutory scheme to take the ‘extraordinary’ step of foreclosing
jurisdiction unless Congress’ intent to do so is manifested by ‘clear and convincing’ evidence.”
Constitutional Considerations
Perhaps the key legal question raised by the expansion of expedited removal is whether or how due
process considerations might limit its use in the interior of the United States. The Supreme Court has long
Shortly after
the expansion was announced, plaintiffs brought suit challenging its lawfulness.
Legal Challenge to the Expedited Removal Expansion
In Make the Road New York v. Wolf, several advocacy groups, on behalf of individuals affected by the
new DHS rule, filed a lawsuit in the U.S. District Court for the District of Columbia, challenging the
agency’s expansion of expedited removal. The plaintiffs alleged that DHS violated the Administrative
Procedure Act (APA) because the agency failed to comply with notice-and-comment procedures before
announcing the expansion, and the agency did not offer a “reasoned explanation” for its decision. The
plaintiffs also argued that the expansion violated the Fifth Amendment’s Due Process Clause because it
deprives individuals who have lived in the United States for lengthier periods of time an opportunity to
contest their removal at a hearing. In September 2019, the federal district court granted the plaintiffs’
motion for a preliminary injunction pending the outcome of the litigation. The court determined that it
had jurisdiction to review the plaintiffs’ challenge under INA § 242(e)(3), which exclusively authorizes
the D.C. federal district court to review whether a regulation or written policy to implement expedited
removal is unconstitutional or in violation of law. The court also ruled that the plaintiffs were likely to
succeed on the merits of their APA claims because, in expanding expedited removal, DHS failed to
comply with notice-and-comment procedures and to consider the “potential negative impacts” of
expanding expedited removal into the interior of the United States. The court did not address the
plaintiffs’ constitutional challenge to the expedited removal expansion.
The government appealed to the U.S. Court of Appeals for the D.C. Circuit. On June 23, 2020, the D.C.
Circuit reversed the district court’s injunction. As an initial matter, the D.C. Circuit agreed with the lower
court that it could review the plaintiffs’ challenge to the expedited removal expansion under INA §
242(e)(3). But the court held that the plaintiffs failed to show a likelihood of success on the merits of their
APA claims. Starting with the plaintiffs’ substantive claim that DHS failed to offer a “reasoned
explanation” for the expedited removal expansion, the court recognized that, under the APA, there is no
cause of action when the “agency action is committed to agency discretion by law.” The court determined
that the plaintiffs’ challenge to DHS’s designation of additional classes of aliens subject to expedited
removal fell within this “restrictive mold” because, under INA § 235(b)(1), “[s]uch designation shall be in
the sole and unreviewable discretion” of the DHS Secretary. Moreover, the court observed, § 235(b)(1)
“provides no discernible standards by which a court could evaluate the Secretary’s judgment.” Thus, the
statute “confines the judgment to the Secretary’s hands and, in so doing, inescapably seeks to withdraw
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the decision from APA review.” Turning to the plaintiffs’ procedural claim that DHS failed to comply with
the notice-and-comment procedures when it announced the expansion, the court determined that §
235(b)(1) rendered that process inapplicable because it gave the Secretary “sole” discretion to make a
designation “entirely independent of the views of others,” and to modify that designation “at any time.”
The D.C. Circuit thus held that the plaintiffs had no cause of action under the APA to challenge DHS’s
decision to expand expedited removal “so long as it falls within statutory and constitutional bounds,” and
remanded the case for further proceedings. Like the district court, the D.C. Circuit did not consider
whether the expansion of expedited removal violated other federal statutes or the constitutional rights of
aliens within the United States, leaving those questions for the lower court to resolve on remand. For now,
though, given the D.C. Circuit’s ruling, DHS may proceed with the expansion of expedited removal into
the interior of the United States pending the outcome of the litigation.
Constitutional Considerations
Perhaps the key legal question left open by the D.C. Circuit’s decision is whether due process
considerations limit the use of expedited removal in the interior of the United States. The Supreme Court
has long held that aliens seeking entry into the United States have no constitutional rights regarding their
applications for admission. But the Court has recognized that aliens who have physically entered the
United States, even unlawfully, are “persons” under the Fifth Amendment’s Due Process Clause. Due
process protections generally include thea right to a hearing and a meaningful opportunity to be heard
before before
deprivation of a liberty interest—features arguably lacking in the expedited removal context,
where aliens
generally have no right to a hearing or further review of an administrative determination of
removability.
To date, reviewing courts have generally upheld the expedited removal process as employed along the
border (though in a few cases, some courts have held that certain aliens did not meet the criteria for
expedited removal, or that DHS officials failed to comply with expedited removal procedures). For
example, shortly after the expedited removal statute was enacted, a group of immigration advocacy
advocacy organizations and
aliens who had been removed filed a lawsuit arguing that the expedited removal
process—at the time
applied only to aliens arriving at designated ports of entry—offered insufficient
procedural protections. The U.S. District Court for the District of Columbia upheld the expedited removal
statute
The D.C. federal district court disagreed, citing Congress’s broad legislative authority over the admission
of aliens and the “long-standing
precedent” that aliens seeking to enter the United States have no
constitutional due process protections
concerning their applications for admission, and (the D.C. Circuit
affirmed that decision on appeal) in 2000. These earlier cases, however, did not consider the expansion of
expedited removal into the interior of the United States or its application to persons who had developed
more significant contacts to the country than aliens initially arriving at the border. The plaintiffs in Make
the Road New York contend that even if expedited removal applied to arriving aliens is permissible, its
expansion to aliens who have been physically present in the United States for up to two years is not.
In assessing whether expedited removal may be employed with respect to aliens unlawfully present in the
United States, a key consideration may be whether the procedural protections to which an alien is
constitutionally entitled in removal proceedings turn upon the alien having been admitted into the United
States. In the early decades of the 20th century, the Supreme Court issued several decisions recognizing
that an alien admitted into the country was entitled to notice and a fair hearing before being removed. But
the Court suggested it was less clear whether those protections were owed to aliens who entered
unlawfully, particularly when the unlawful entrants had not developed significant ties to the United States.
And moreMore recently in its 1982 decision in Landon v. Plasencia, the Court opined that “an alien seeking
initial initial
admission to the United States requests a privilege, and has no constitutional rights regarding his
application, for the power to admit or exclude aliens is a sovereign prerogative.” It is only once “an alien
gains admission to our country and begins to develop the ties that go with permanent residence,” the
Court continued, “that his constitutional status changes accordingly.”
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Yet in other cases the Court has seemed to indicate that an alien’s physical presence in the United States is
sufficient for due process considerations to attach to removal decisions. In the 1953 case of
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Shaughnessy Shaughnessy
v. United States ex rel. Mezei, for example, the Court held that an alien detained for
exclusion at the
threshold of entry was entitled only to whatever process was afforded by Congress. But
the Court went on
to declare that once an alien has “passed through our gates, even illegally,” he could
“be expelled only
after proceedings conforming to traditional standards of fairness encompassed in due
process of law.” And more recently the CourtThe
Court has described the Due Process Clause as extending protection to
aliens within the United States
“whether their presence here is lawful, unlawful, temporary, or
permanent.”
But the Supreme Court has not squarely addressed how procedural due process considerations attach to
unlawfully present aliens placed in removal proceedings. And lower courts seem to have rarely
considered this issue, perhaps because aliens identified for removal in the United States have typically
been placed in formal removal proceedings, regardless of whether they unlawfully entered the country or
had been lawfully admitted but engaged in conduct rendering them deportable. In the few published
decisions where courts have considered challenges brought by aliens arrested in the United States and
placed in expedited removal, those courts have emphasized the aliens’ status as “recent surreptitious
entrants.” This characteristic, the courts reasoned, made it appropriate to treat them like applicants for
initial admission into the United States, who lack due process rights in relation to admission beyond that
authorized by Congress. But these cases concerned aliens whose presence in the country was significantly
less than the two-year window set forth in the new expedited removal expansion. DHS’s expansion
throughout the United States may require courts to reassess the scope and limitations of Congress’s broad
immigration power with respect to aliens who, though physically present in the country, were never
lawfully admitted, and whether due process affords them certain rights in the course of removal
permanent.”
In DHS v. Thuraissigiam, decided on June 25, 2020, the Court stated that “aliens who have established
connections in this country have due process rights in deportation proceedings.” But the Court did not go
further to assess the nature of “established connections,” beyond determining that an alien apprehended
by immigration authorities 25 yards from the U.S.-Mexico border could be “treated for due process
purposes as if stopped at the border.” Citing Mezei, the Court reasoned that the alien remained “on the
threshold” of entry and was entitled only to those procedures provided by Congress. To conclude
otherwise, the Court declared, would “undermine the sovereign prerogative of governing admission to
this country and create a perverse incentive to enter at an unlawful rather than a lawful location.” In a few
published decisions, lower courts have similarly emphasized aliens’ status as “recent surreptitious
entrants” in treating them like applicants for initial admission who lack due process rights in relation to
admission beyond that authorized by Congress. But these cases concerned aliens whose presence in the
country was significantly less than the two-year window set forth in the new expedited removal
expansion. DHS’s expansion throughout the United States may require courts to reassess the scope and
limitations of Congress’s broad immigration power with respect to aliens who, though physically present
in the country, were never lawfully admitted, and whether due process affords them certain rights in the
course of removal proceedings.
Author Information
Hillel R. Smith
Legislative Attorney
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